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20 May 2011

Were the Justice Secretary’s comments on rape out of order?

In a recent interview with the BBC, the Justice Secretary Kenneth Clarke was criticised for appearing to suggest that there are different categories of rape.  So what is the position in law?

Section 1 of the Sexual Offences Act 2003 creates a single offence of rape. It consists of the intentional penile penetration of the vagina, anus or mouth of another person without consent.  Whilst this single offence covers a broad range of conduct and circumstances, it is nevertheless true that ‘rape is rape’ and that the law should never tolerate the suggestion that any rape might be excusable. Whether the defendant in any individual case is guilty is decided by a jury: a panel which one hopes will apply sound moral and intellectual judgment when deciding its verdict.  Unsurprisingly there is a perception that conviction rates are ‘too low’ and that attempts to tighten rape law so as to increase rates have been unsuccessful. Whatever the reasons for this, low conviction rates undermine public confidence in the system and can only discourage victims from pursuing complaints in the courts.

A defendant convicted of rape will be sentenced by the judge; the jury plays no part in determining sentence. Current guidance for judges states that no form of non-consensual penetration can be considered a more serious violation of the victim’s sexual autonomy than any other.   However, when deciding on the appropriate sentence following conviction, a judge is required to take into account all relevant aggravating and mitigating factors on a case-by-case basis.  A distinction is made between the varying levels of severity of the offence, not by the creation of separate categories of rape, but by a judge seeking to pass an appropriate sentence in each case by reference to the particular facts.

The Justice Secretary’s comments were made as part of the wider discussion  on incentivising guilty pleas in criminal proceedings  by increasing the maximum available discount on sentence for an early guilty plea from 33% to 50%.  This has raised questions about whether the criminal justice system adequately reflects the seriousness of offences such as rape.  However, this consultation must be conducted on the understanding that the seriousness of an offence is reflected by the sentencing regime and not by the existence of separate categories of rape offences.  Rape carries a maximum sentence of life imprisonment yet not all offences of rape attract the maximum sentence.  The Justice Secretary’s remarks reflect this.

Corker Binning is a law firm specialising in criminal work of all kinds.  For more information call us on 020 7353 6000.

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